CASE UPDATES

By: Martin J. Mayer

SUPERVISORS MAY BE PERSONALLY LIABLE FOR RETALIATION

Peterson v. County of Santa Clara, et al. 2000 Daily Appellate Report D.A.R. 1649

Phyllis Peterson, an 11 year employee of the Santa Clara Valley Medical Center, alleged that co-worker made numerous unwelcome sexual advances. Peterson complained to her superiors, but the alleged harassment continued. Peterson filed a complaint with the California Department of Fair Employment and Housing and settled her sexual harassment claims against Santa Clara County and Santa Clara Valley Medical Center.

Peters alleged that, following the settlement her supervisors, Linda Tacker and Patti Bunce, began to retaliate against her by: breaching the terms of the settlement agreement, falsely accusing her of stealing narcotics from the Medical Center, demoting her, unfairly scrutinizing her work performance, maintaining a "secret file" on her in violation of her right to privacy, improperly reprimanding her, placing her on administrative leave without explanation, and suspending her for 30 days for the alleged theft of narcotics.

The United States District Court for the Northern District of California rejected the Defendants' contention that Bunce and Tacker could not be held personally liable for retaliation under California Government Code § 12940(f), citing the holding in Page v. Superior Court, 31 Cal.App. 4th 1206 (1995), that supervisors can be held individually liable for claims of retaliation.

The Court recognized that the California Supreme Court had, for the first time, held in Reno v. Baird, 18 Cal. 4th 640 (1998), that supervisors are not personally liable for discrimination claims. However, the Court also pointed out that the Reno decision did not address retaliation claims and thus did not bar personal liability for retaliation.

/ How does this impact your department?

Supervisors may have breathed a sigh of relief when the Reno decision was handed down, but should be reminded that they remain subject to personal liability for retaliatory conduct. While supervisors should not be afraid to continue supervising subordinates who have filed complaints, they should exercise caution under such circumstances and should not hesitate to seek input from their superiors and/or legal counsel if they are concerned that their actions (e.g., discipline or poor performance reviews) could be perceived as retaliatory.

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COURT FINDS CIVIL CODE § 47.5 UNCONSTITUTIONAL

Gritchen, et al. vs. Collier, et al. 2000 Daily Appellate Report D.A.R.2389

In 1998, Myron Gritchen was stopped by Gordon Collier, a Long Beach Police Officer, for a traffic violation. Gritchen subsequently filed a citizen complaint as a result of the stop. The Department found there was no misconduct and Collier, through his attorney, sent a letter to Gritchen threatening to file a defamation suit pursuant to California Civil Code § 47.5. Gritchen responded by challenging the constitutionality of Section 47.5 on First Amendment grounds.

California Civil Code § 47 provides that most publications and broadcasts arising out of official government duties or made during official proceedings are privileged. Thus, such publications or broadcasts cannot form the basis for a defamation action. Government Code § 47.5, however, carves out an exception for certain citizen complaints, i.e. a peace officer may file suit for defamation if a citizen knowingly files a false complaint and does so with spite, hatred, or ill will.

The Court determined that Section 47.5 violates the First Amendment because it constitutes a content based regulation of speech. An individual may criticize the performance of a legislator with impunity, for example, but is potentially liable for criticizing the performance of a peace officer.

Content-based regulations are subject to strict scrutiny by the courts. The Court opined that while Section 47.5 may serve the goal of protecting peace officers from unfounded complaints, it may also be used to discourage legitimate complaints. The court concluded that, by treating citizen complaints against police officers differently from complaints against all other government officers, Section 47.5 violates the First and Fourteenth Amendments.

/ How does this impact your department?

This decision will likely have a greater impact on individual officers than it will on the agencies that employ them. The next likely legal challenge, however, will be to Penal Code § 148.6, making it a misdemeanor to knowingly file a false complaint against a peace officer which may impact you manner of handling the intake of citizen complaints.

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NO QUALIFIED IMMUNITY WHERE OFFICERS ENTER RESIDENCE TO MAKE ARREST WITHOUT CONSENT, WARRANT, OR EXIGENT CIRCUMSTANCES

LaLonde v. County of Riverside 2000 Daily Appellate Report D.A.R. 2031

John LaLonde lived in an apartment in Hemet, California with his roommate Monica Jones and her three young children. On July 21, 1996, LaLonde left work at around 11:30 p.m., came home, changed clothes, and left to go grocery shopping. He returned home shortly before midnight, grabbed a sandwich and began playing video games.

That night, LaLonde's neighbor contacted the Riverside County Sheriff's Department to complain that LaLonde had been causing a disturbance. The walls in the apartment complex were thin such that one could hear voices in neighboring apartments. On at least three previous occasions, the neighbor had contacted the police complain about excessive noise in neighboring apartments. The police and landlord had investigated the complaints and determined them to be false or unfounded.

Shortly after 1 a.m., deputy sheriffs arrived in response to the noise complaint. Although one deputy testified that he heard yelling, he also testified that there appeared to be a conversation occurring and that the participants were not angry.

The complainant told the deputies that LaLonde had been causing a disturbance about an hour before. She also told deputies that LaLonde kept a rifle in his apartment, was hostile towards law enforcement, and would be willing to use the rifle. The complainant told deputies that, if LaLonde cooperated with the deputies, she would drop her complaint, but that she would be willing to make a citizen's arrest if LaLonde was uncooperative.

The deputies proceeded to LaLonde's apartment and Monica Jones opened the door. As the deputy was asking if LaLonde was home, LaLonde walked into view in his underwear and holding a sandwich. LaLonde said, "I'm right here" and remained inside the apartment. The deputy asked if he could enter the apartment and said, "no. I will talk to you from inside the house." When the deputy told LaLonde that he was investigating a noise complaint, LaLonde responded that the complaint was "bullshit, ... it had been an ongoing harassment thing with her. She had done this several times in the past, bogus complaints to the property management people."

There was a difference of opinion concerning what happened next. LaLonde stated that the deputy crossed the threshold and grabbed the front of his t-shirt. The deputy testified that he told LaLonde he was being arrested for obstructing a police investigation and that he asked LaLonde if he would submit to being arrested. When LaLonde refused, Moquin grabbed LaLonde's hands and knocked the sandwich to the floor. When LaLonde reached down for the sandwich, the deputy grabbed LaLonde by his ponytail and knocked him backwards to the ground, straddled him and began to pin him down to handcuff him. LaLonde resisted and a scuffle ensued. The deputy then sprayed LaLonde's face with OCS and the resistance ceased. The second deputy entered the apartment and put his knee into LaLonde's back to help his partner with handcuffing LaLonde. Both deputies testified that they did not offer LaLonde any first aid after OCS was applied.

LaLonde brought a civil rights action alleging the Deputies illegally entered his home without a warrant and used excessive force during and after his arrest. With regard to the illegal entry claim, the trial court issued a pretrial order granting the officers qualified immunity. With respect to the excessive force claim, the court entered judgment in favor of the deputies on qualified immunity grounds upon completion of the plaintiff's case-in-chief at trial.

The Ninth Circuit Court of Appeals held that the trial court erred by failing to evaluate the facts in light most favorable to LaLonde and by deciding disputed issues of fact which should have been decided by a jury.

Addressing the issue of probable cause, the Ninth Circuit stated that it was well settled that, absent exigent circumstances, probable cause alone cannot justify an officer's warrantless entry into a residence. The Court did however point out that the Fourth Amendment's prohibition on warrantless entry into a residence did not apply to arrests made at the doorway, because the doorway was considered a public place.

In this case, neither party contended that the deputies attempted to arrest LaLonde at the doorway. Rather, the arrest took place after the officer had crossed the threshold of the door and entered LaLonde's apartment. Thus, the case did not qualify for the doorway exception. The Court also concluded that exigent circumstances were not present and that a reasonable officer would have known that such was the case.

Addressing the issue of excessive force, the Court held that the jury should have been permitted to decide LaLonde's complaints against the deputies and the County.

/ How does this impact your department?

Agencies should check their policies regarding warrantless arrests in residences, paying particular attention to provisions for non-violent, misdemeanor activity. "Qualified immunity" is a fragile protection for officers. The best protection against these types of claims is training and the constant appraisal of your agency's policies.